I recently had the pleasure of doing some in-depth research regarding Title VI and Title VII discrimination claims under the Civil Rights Act of 1964 (CRA), paying particular attention to the phrase “national origin.” Title VI of the Civil Rights Act of 1964, 42 U.S.C. § 2000d (2000); Title VII of the Civil Rights Act of 1964, 42 U.S.C. § 2000e-2 (2000). Faced with broad yet profound research inquiries, I spent hours poring over material, and began to note a rather interesting strand of debates that involved a single question: does the CRA’s prohibition against national origin discrimination also prohibit language discrimination?
Not a novel question, and yet it is a reflection of today’s growing social and political concerns. Thousands of legal professionals have wrestled with the implications behind allowing an individual’s native language to provide the basis for legal action in situations of discrimination. We continue to presumably draw on the following logical inference — discrimination against my language, in essence, discriminates against my culture, my national heritage, which ultimately amounts to an affront to my civil rights.
Setting the legal question aside, I became heavily acquainted with this term: LEP, as in Limited English Proficiency.
Within the United States’ ever-changing demographics — particularly from immigration — there is a population of individuals who are grappling with issues of communication and English-language learning, running into language barriers. Our country wrestles with growing linguistic diversity, reacting from all ends of the ideological spectrum. And now, it is the slow-moving (for better or worse) machinery of the law that is reacting. The law attempts to reconcile the “tightly-tethered” relationship between language and national origin, and while immigration and other policy debates rage on, lawyers do battle in courtrooms, shaping policy in other ways.
It was twelve years ago that President Clinton signed Executive Order 13,166, requiring federally-conducted and federally-assisted programs “to ensure that the programs and activities they normally provide in English are accessible to LEP persons and thus do not discriminate on the basis of national origin in violation of [T]itle VI of the Civil Rights Act of 1964, as amended, and its implementing regulations” Exec. Order No. 13,166, 65 Fed. Reg. 50,121 (Aug. 11, 2000). Yet even today, we truly do not understand how this Order and other social phenomena have produced the phrase “language minority” — take what implications you will from such a phrase.
Again, allow me to reassert the legal question: Does the CRA’s prohibition against national origin discrimination also prohibit language discrimination? In a Harvard Latino Law Review article, Attorney Carrie Lynn Flores answered this very question alongside an additional question: Are Limited English Proficiency (LEP) individuals entitled to receive special accommodations? See Carrie Lynn Flores, Translation Services Not Required: The Civil Rights Act of 1964 Does Not Require Special Accommodations for Limited English Proficiency Individuals, 14 Harv. Latino L. Rev. 193, 194-95 (2011). I found her article to be most enlightening, as she answered each question with a concise and resounding “no.”
Ms. Flores approached the broader implications of President Clinton’s Executive Order, finding the Order to have blurred an important line between language and national origin that the courts have recognized for quite some time. Ultimately, Flores exposes the limitations on the CRA’s scope. In essence, Ms. Flores argues (1) that the CRA was intended to bar discrimination against minorities and (2) that the CRA’s scope has generally been interpreted in a narrow way, due to a fear of providing protections that Congress did not contemplate. 14 Harv. Latino L. Rev. at 197-198, 208-210.
Interpretation of the CRA being the principal concern, Flores points to the crux of the current debate: “is the Act grounded in ensuring equality, or conversely, in providing special accommodations to minorities?” Id. at 198. Flores specifically turns her attention to an entity’s obligations in providing special accommodations to LEP individuals by identifying the Supreme Court’s relative silence and the array of holdings from the lower courts that fall on both sides of the debate. Id. at 198-199.
Flores cites decisions in the Seventh and Ninth circuits which did not find a requirement to provide special accommodations to LEP persons. See Nazarova v. INS, 171 F.3d 478, 483 (7th Cir. 1999) (Seventh Circuit found that due process does not require Immigration and Naturalization Services to provide individualized notice of deportation in the preferred language of the deportee); Carmona v. Sheffield, 475 F.2d 738 (9th Cir. 1973) (rational basis existed for the State of California in providing unemployment benefit information, including benefit termination notices, only in English; thus, the court upheld the practice). These decisions approached the language versus national origin issue, but narrowed their focus to prudential concerns in providing special accommodations.
Further, Flores cites ProEnglish v. Bush, an unpublished U.S. District Court decision that found national origin and language not to be the same thing. See No. 1:02CV00356, 2002 WL 34362594 (E.D. Va. May 31, 2002), aff’d, 70 Fed. Appx. 84 (4th Cir. 2003). The ProEnglish court found the U.S. Department of Justice’s policy guidance for federally conducted and assisted programs as an unprecedented expansion of settled law because policy characterized English requirements as national origin discrimination under Title VI. Overall, Flores suggests that ProEnglish supports the position that language and LEP status are not protected under the CRA. 14 Harv. Latino L. Rev. at 201-02.
In contrast, Flores also highlighted cases which suggest that an entity may need to provide special accommodations to LEP individuals. In citing to EEOC v. Synchro-Start Products, Inc., 29 F. Supp. 2d 911, 915 (N.D. Ill. 1999), involving a challenge to English-only work rules, the court found that such rules could violate Title VII and denied the defendant’s motion to dismiss the claim. Similarly, in EEOC v. Premier Operator Services, Inc., 113 F. Supp. 2d 1066 (N.D. Tex. 2000), another District Court case, the court found that an English-only policy that lacked “business necessity” was discriminatory against employees’ national origin, thus violating Title VII’s prohibition on national origin discrimination. 14 Harv. Latino L. Rev. at 203-04.
Flores particularly notes these decisions’ equation of language with national origin, and each court’s suggestion that special treatment should be provided to LEP individuals — allowing an employee to speak their native language while at work. Id. at 204-05.
Finally, using a textual and historical analysis, Flores reasserts her central arguments: (1) that the plain language of CRA does not include a prohibition on language discrimination; and (2) that the CRA was meant to eliminate discrimination against minorities who fall within the enumerated classes as opposed “to providing special accommodations to them at the expense of those not protected by the Act.” Id.
Moreover, Flores points to the Supreme Court’s definition of national origin in Espinoza v. Farah Manufacturing Co., which states that “[t]he term ‘national origin’ on its face refers to the country where a person was born, or more broadly, the country from which his ancestors came.” 414 U.S. 86, 88 (1973). Given the Court’s 1973 definition, Flores notes Congress’ amendment to the CRA in 1991, with Congress’ failure to mention the Court’s definition as representation of acquiescence toward the Court’s interpretation. Drawing from such analysis, Flores concludes that Congress did not intend for the CRA to require special accommodations for LEP individuals, and more specifically that national origin was not meant to encompass language.
So I ask again, in discrimination claims, may language be used as a proxy for national origin? Although I enjoyed Ms. Flores’ article, I am not sure I can entirely agree with her. It seems this matter has created a circuit split. See Kikumura v. Turner, 28 F.3d 592, 599 (7th Cir. 1994) (“Whether classifications on the basis of language are to be treated as classifications on the basis of national origin is an unsettled question. There are exceedingly few Supreme Court opinions addressing the rights of language minorities . . .”); Yniguez v. Arizonans for Official English, 69 F.3d 920, 947–48 (9th Cir.1995)(“Since language is a close and meaningful proxy for national origin, restrictions on the use of languages may mask discrimination against specific national origin groups or, more generally, conceal nativist sentiment”); Sandoval v. Hagan, 197 F.3d 484, 509 n. 26 (11th Cir.1999) (while the Supreme Court has never held that language may serve as proxy for national origin, it “has observed the close nexus between language and national origin”). And still, most courts are very hesitant in even touching language and national origin with a proverbial “ten foot pole.” See Novosel v. Wrenn, 10-CV-165-PB, 2010 WL 5157414 (D.N.H. Nov. 18, 2010).
Linguistic diversity has continued to become a reality in our nation. Regardless of personal ideology or political preference, there is a real danger that “restrictions on the use of languages” or policies along those lines may mask discrimination against “specific national origins groups or, more generally, conceal nativist sentiment.” Yniguez, 69 F.3d at 947-58. I believe the original question — does the CRA’s prohibition against national origin discrimination also prohibit language discrimination? — is a failure to conceptually reconcile the law’s meaning across branches. And while Presidents sign executive orders, lawmakers hold gridlocking floor debates, and lawyers advocate in front of judges who stay true to the tenets of stare decisis, the face and language of the public continues to change.
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